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Research On Legal Issues Of Indirect Independent Guarantee

Posted on:2019-06-23Degree:MasterType:Thesis
Country:ChinaCandidate:X L LaiFull Text:PDF
GTID:2346330548452828Subject:International Law
Abstract/Summary:PDF Full Text Request
With the deepening development of China's "One Belt and One Road" and the implementation of the "Going Out" strategy,the ever-increasing cross-border economic exchanges and ever-increasing investment demand have led to the gradual growth and expansion of such financial instruments as independent guarantee with higher efficiency.Independent guarantee has already become an important part of the international business of our country's banks.Against this background,“the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Independent Guarantee Dispute Cases” came into effect on December 1,2016.The judicial interpretation not only defines the concept and characteristics of the independent guarantee,but also defines that the independent guarantee can apply to both foreign businesses and domestic transactions.This judicial interpretation not only solved the difficult problems that plagued the development of bank independent guarantee business,but also provided domestic law basis for the settlement of relevant legal disputes and provided a relatively perfect legal guarantee for the globalization of China's independent guarantee business.In practice,according to the different operating mechanism of independent guarantee,it can be divided into direct independent guarantee and indirect independent guarantee.In contrast,Indirect independent guarantee is not only more widely used in international economic and trade activities,but also involves more complicated legal relationship and legal issues.Therefore,the main body of this article is based on the procedure of claiming and recovering of the indirect independent guarantee.“the Provisions of the Supreme People's Court on Several Issues concerning the Trial of Independent Guarantee Dispute Cases”,“the UN Convention on Independent Guarantees and Standby Letters of Credit” and “the Unified Rules for Demand Guarantees ICC Publication No.758” are the main sources of law.The three main legal issues of indirect independent guarantee are discussed in detail in three chapters.The first chapter discusses the issue of claiming the basic guarantee between the guarantor and the beneficiary.First of all,it clarifies the types of documents submitted by the beneficiary.Secondly,it introduces the criteria,deadlines and legal consequences of examining the documents after the guarantor receives the documents.Finally,it introduces some special situations that may exist during the claim process of the basic guarantee.The second chapter discusses the issue of independence of counter-guarantee between the instructor and the guarantor.On the one hand,it is clear that the counter-guarantee is independent in principle.The main manifestation is that the instructor should perform the payment obligation under the counter-guarantee as long as the guarantor submits the documents that meet the counter-guarantee,and the performance of the obligation is not affected by basic guarantees,basic transactions and commission contracts.On the other hand,a number of exceptions to the independence of counter-guarantee are introduced.At this moment,the instructor is entitled to protest or apply to the court for withholding the payment,even if the guarantor submits the documents that meet the counter-guarantee.The third chapter discusses the issue of the deposit between the principal and the instructor.First of all,it clarifies the legal nature and legal consequences of the independent guarantee deposit.Second,it introduces the controversies over the constitutive requirements of the cash pledge.In the end,it proposes the relevant risk-averse measures.Finally,I summarize the views of this article and come to the conclusion of the study.
Keywords/Search Tags:Basic Guarantee, Counter Guarantee, Independence, Deposit
PDF Full Text Request
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